Disciplinary Proceedings against a Govt. Servant: Procedure thereof
Government Servants play a very important role to run the administration of the Country. They are important constituents of the administrative set up of the nation. They are pillars of the Govt. departments on whose shoulders the responsibility to implement the Govt. policies lies. They provide public services to the citizens at the grass root level and in the same way, they forward grievances of the public, their representations and demands to higher ups for their effective resolution. It is only because of loyalty of Govt. servants, the British could rule India for such a longer period. The Govt. employees have different work culture and responsibilities as compared to their counterparts in private sector. They are smartly paid, have some kind of privileges and facilities but at the same time they have heavy responsibilities toward the Govt. in particular and public in general. With the increase in education level of the citizens, growth of Information technology, public awareness about their Fundamental rights and legislations like Right to Information Act, 2005, the responsibility of the Govt. employees have increased and become time bound. In order to ensure that Govt. employees give their best to the country, some constitutional safeguards have been provided to the Govt.
Article 311 provides two procedural safeguards to the civil servants in relation to their tenure of office.
These are:- A) No removal or dismissal by an authority subordinate to the appointing authority.
B) No removal or dismissal or reduction in rank, except after an inquiry affording reasonable opportunity of hearing.
However, as is said by Lord Acton that power corrupts and absolute power corrupts absolutely, many a times, some Govt. Servants start misusing their official power and position.
They start shirking work, do not do their work as per rules and orders and indulge in other kinds of misconduct. Therefore, in order to discipline them and to control them, the concept of departmental proceedings is provided in the service rules.
The departmental proceedings against a public servant has to go through various steps such as:
1. Lodging of complaint or making allegations of misconduct against the Govt. Servant.
2. Holding of Preliminary Inquiry.
3. Consideration of the report of the Preliminary Inquiry by the disciplinary authority.
4. Show cause notice to the delinquent official who is prima facie held responsible in the Preliminary Inquiry.
5. Replying of the employee to the Show Cause Notice.
6. Issuance of Charge-sheet to the delinquent official, if reply is considered unsatisfactory by the disciplinary authority.
7. Replying of the employee to the charge-sheet.
8. Scrutiny of the reply by the disciplinary authority.
9. Appointment of Enquiry Officer i.e. order for regular inquiry and nomination of Presenting Officer.
10. Legal assistance for defence.
11. Attendance and examination of witnesses.
12. Submission of Inquiry report by the enquiry officer.
13. Show Cause Notice to the delinquent employee
14. Submission of reply and Consideration of past records of the delinquent official
15. Penalty Proposed.
16. Final order.
17. Service Appeal, if any.
The procedure to be followed in disciplinary proceedings is generally laid down in Service Rules and Standing Orders made there under. However, the procedure, so laid down, is subordinated to the provisions of the Constitution of India i.e. any rule can not be ultra-vires the provisions of the Constitution, e.g. Article 310,311 etc. Although the provisions of the Indian Evidence Act,1872, do not apply to the departmental proceedings but the principal of natural justice has to be followed. Thus, reasonable opportunity to defend himself must be given to the person against whom departmental proceedings have been initiated. It is also to note that acquittal in criminal proceedings on the same set of charges, per se, does not entitle the delinquent to claim immunity from disciplinary proceedings, as observed by the Supreme Court in case C.M.D.U.C.O. Vs P.C. Kakkar, AIR 2003 SC 1571.In the same way, departmental proceedings may be continued even after retirement of the employee. (U.P.S.S. Corp.Ltd. Vs K.S.Tandon, AIR 2008 SC 1235) The detailed analysis of various steps of the departmental proceedings is provided as under:- (1)Lodging of a complaint: The departmental proceedings against a Government servant starts with the lodging of a complaint with the disciplinary authority. On the receipt of a complaint, it is open to the disciplinary authority to hold preliminary inquiry to ascertain the prima facie truth in the allegations. The complaint may be made by an ordinary citizen or superior officer of the employee.
(2) Holding of Preliminary Enquiry:-
The main purpose of preliminary inquiry is to determine whether or not there is a prima facie case against the official for proceeding further against him. The preliminary inquiry is conducted by the officer superior to the delinquent on the directions of the disciplinary authority so that disciplinary authority comes to the conclusion that as to whether or not it is necessary to hold a regular departmental inquiry. However, if the service rules permit, then it is not always necessary to hold preliminary inquiry before the initiation of regular departmental inquiry. Preliminary Inquiry is in the nature of a fact finding enquiry. It is held for the purpose of issuance of the charge –sheet to the delinquent official and not for the purpose of deciding upon the guilt of the Govt. servant concerned. Preliminary enquiry may even be conducted exparte. The employee concerned has no right to be associated with the preliminary enquiry. However, in order to give due importance to the principle of natural justice and to avoid judicial scanner, the concerned employee is normally given an opportunity to be heard about the allegations against him. Some times, the official concerned may have some strong defense with him which prima facie exonerate him from the allegations for which the preliminary inquiry is being held. Since it is not necessary to hold preliminary inquiry before initiation of regular departmental inquiry, however, it would be desirable to hold such an enquiry in the following cases:-
(i) Where it is not immediately known as to who was responsible for a particular act or loss;
(ii) Where it is considered desirable before initiating departmental proceedings to have prima facie evidence against the official concerned;
(iii) Where the allegations are vague or indefinite and it is necessary to find out all the acts of commission or omission to form the basis of the charges.
(3) Report of the Preliminary inquiry:
After the conclusion of preliminary inquiry, a brief record of the proceedings should be prepared in writing. The inquiry should conclude into a report which should contain the findings as to whether there seems to be some substance in all or some of the allegations and to what extent a particular employee is responsible. After examining the report, the disciplinary authority should decide as to whether a prima facie case exists for the initiation of regular departmental inquiry or not. It is to be noted that while ordering preliminary inquiry, the disciplinary authority should not dictate to the inquiry officer the name of the official against whom preliminary inquiry is contemplated because it would adversely jeopardize the defense of the official concerned. In case State of U .P. Vs C.S. Sharma, AIR 1968 SC 158, the disciplinary authority wrote to the inquiry officer to conduct an inquiry but also wrote that he was sure that the delinquent was guilty. Such expression of opinion by the disciplinary authority was held to vitiate the whole inquiry proceedings.
(4) Show Cause Notice:
When a Govt. official is held prima facie responsible for misconduct in the preliminary inquiry report, then show cause notice is issued by the disciplinary authority asking him to submit his reply as to why further proceedings be not initiated against him. In the show cause notice the delinquent is required to be informed that he is prima facie held responsible for the professional misconduct/lapse.
(5) Reply to the Show cause notice:
Thereafter the delinquent held prima facie responsible for misconduct, is required to submit his reply to the show cause notice within stipulated period prescribed in the show cause notice. If the delinquent failed to submit his reply within the prescribed period, then the disciplinary authority is empowered to move further into the matter ex-parte or reminder may be issued to the delinquent to submit his reply.
If the reply to the show cause notice is considered as unsatisfactory by the disciplinary authority, then formal departmental proceedings are initiated against the Govt. servant starting from issuing charge-sheet to him. The grounds on which it is proposed to initiate the formal departmental proceedings should be reduced to the form of definite charge or charges. The charges should be communicated in writing to the delinquent in the form of a charge sheet. The expression ''Charge-sheet" is borrowed from criminal law. It refers to the written and formal intimation to the delinquent, about the alleged misconduct so that he has full knowledge of the acts or conduct, he is accused of. It is a document containing the allegations of misconduct, called the ''Charge", leveled against the employee concerned. There is no specific or prescribed form in for issuing the charge-sheet. Generally, it is in the form of a letter or notice. Requisites of a Valid Charge:- In a disciplinary proceedings, the charge sheet is very important. It should be framed with great care and competence. A faulty charge-sheet may invalidate the whole proceedings.
The requisites of a valid charge or charge sheet are the following:
(a) The Charge should not be vague:- The charge must be specific, particular and precise. The vagueness of a charge vitiates the inquiry proceedings. It is not easy to define the term vagueness. If the ground is incapable of being understood nor defined with sufficient certainty, it can be called vague. It would be vague if it does not give any indication of charges against the employee. If the charges are imprecise or indefinite, the person charged would not be able to understand them and defend himself effectively.
(b) The language of the charge -sheet should be simple and impartial:- The language of the charge-sheet should be simple and clearly understandable to the employee.
(c) The charge should give full details of the incident:- All the material relating to the charges must be brought along with the charge-sheet. The delinquent employee should be provided with all material relating to the charges to give him a reasonable opportunity to defend himself, examine and cross-examine witnesses.
(d) The charge-sheet should contain a statement of allegations on which each charge is based. (e) The charge should be based either on breach of the conduct rules framed from time to time or on good and sufficient reason:- It is for the disciplinary authority to decide as to what constitutes good and sufficient reason.It may include incompetence, inefficiency, insubordination, infidelity, neglect of duty, absence from duty, conduct unbecoming of a public servant etc."
(g) The manner of writing the charge-sheet should not be such as to indicate pre-judged conclusion of the guilt which might make the whole inquiry proceedings an empty formality:-If there is an actuated motive of the employer to punish and it is ostensible or smelled from the charge-sheet, it is malafide and is liable to be quashed. The charge-sheet is merely a description of misconduct alleged or reported and not proved against the employee which requires proof of evidence and inquiry. By no means it should show that the disciplinary has already reached a conclusion. (h)The concerned employee must be given a reasonably sufficient time to explain the charges.
(i) To ensure that the delinquent is given an opportunity to give an explanation to defend himself, it is obligatory on the part of the disciplinary authority to furnish the delinquent not only with a copy of charge-sheet but also the grounds on which those charges were based and the circumstances in which it was proposed to take action against him. Furnishing of a copy of the preliminary inquiry report along with the charge-sheet would not be necessary in each case. However, if reliance is placed upon that report, a copy of the same has to be given to the delinquent failing which he would be prejudiced in defending himself. (Capt. I.S.Bawa Vs State of Punjab, 1996(5) SLR (P&H) 387)
(j) Service of charge-sheet:-
The charge-sheet should be served within a reasonable time. However mere delay in serving the charge-sheet would not invalidate the inquiry proceedings unless the same has resulted in prejudice to the delinquent. However, if the charge-sheet has been served beyond the period of limitation, it is liable to be quashed. The Charge-sheet may be served personally, by post or through the press. However, the usual mode of service of a charge-sheet, in case of a departmental inquiries is by personal service. It should be handed over to the employee concerned and its receipt be obtained from him. If he refuses to give receipt, an endorsement to that effect be made on it, in the presence of at least two witnesses. If the employee is able to establish that no charge-sheet was served upon him, the entire disciplinary proceedings would become invalid. Therefore, there should be sufficient material on record to show the service of the charge-sheet on the employee concerned. In order to enable the employee concerned to prepare his explanation, it is obligatory on the part of the disciplinary authority to allow the official concerned to inspect the official record, documents and take copies thereof. He must, on a request made by him, in that behalf, be supplied with the copies of the statements of the witnesses, recorded during the preliminary inquiry, particularly, if those witnesses are proposed to be examined at departmental trial.( State of U.P. Vs Shatrughan Lal, AIR 1998, SC 3038). If the reliance is placed upon the preliminary inquiry report, a copy of the same has to be given to the delinquent, failing which he would be prejudiced in defending himself. However, furnishing of a copy of the preliminary inquiry report along with the charge-sheet would not be necessary in every case, particularly when it is not to be the foundation of the proceedings. (V.K. Nigam Vs State of M.P., AIR 1997 SC 1358). The disciplinary authority may refuse to allow inspection of such records or the taking of such extracts as are not relevant for the purpose of the inquiry or are not to be used against the delinquent. However, the provisions of Indian Evidence Act,1872, do not apply to departmental inquiries.
(7) Reply of the delinquent to the Charge-sheet:
The delinquent has to submit his written reply to the charge-sheet within the time specified, unless it is extended by the competent authority.Failure of the delinquent to submit his explanation would enable the authority to proceed exparte.The authority is, therefore, not required to wait for the reply indefinitely.
(8) Scrutiny of the reply of the delinquent by the disciplinary authority:
The scrutiny of the reply of the delinquent has to be done by the disciplinary authority with utmost care. If the delinquent admits the charges or any of the charges and asks for mercy, no inquiry needs to be held in respect of such charges so admitted. If the explanation of the delinquent is found to be satisfactory and if the authority decides to exonerate the delinquent and not to award any penalty, the proceedings should be dropped. The charges, in respect to which the explanation is found to be satisfactory, should be dropped. In respect to the rest, if in the opinion of the disciplinary authority, the imposition of a major penalty is not warranted and that it would meet the ends of justice if some minor penalty is awarded, the straight away an order awarding such minor penalty be passed and then, in that case, no further inquiry or show cause notice would be necessary. If, after considering the explanation, the punishing authority decides that the delinquent deserves the imposition of a major penalty, then an inquiry officer should be appointed to hold a regular departmental inquiry.
(9) Appointment of Inquiry Officer and nomination of Presenting Officer:
If the reply of the delinquent official is considered unsatisfactory by the disciplinary authority, then Inquiry Officer is appointed to conduct regular departmental inquiry.
While appointing an Inquiry Officer, the following points may be considered:-
(a) The authority should pay due regard to the seriousness of the alleged offence and also to the status/rank of the delinquent official
(b) The Inquiry Officer should be an Officer who is sufficiently senior to the delinquent.
(c) Care should be taken as to avoid any genuine suspension of bias. The Inquiry Officer must be a person with an open and free mind, who can act objectively, free from any kind of bias.(S.Parthasarathy Vs State of A.P; AIR 1973 SC 2701)
(d) The regular inquiry should not be entrusted to the an Officer, who has held the preliminary inquiry.
(e) Unless unavoidable under special circumstances, the disciplinary authority should refrain from being the Inquiry Officer. It is because, the findings and recommendations of the Inquiry Officer are more in the nature of a report to the disciplinary authority to enable it to pass final orders. It is to be noted that a retired officer, board, Court etc. may be appointed Inquiry Authority. The disciplinary authority may nominate any person of the department as a Presenting officer, to present the case of the department before the Inquiry Officer. His role is merely to assist the Inquiry Officer in presenting the evidence on behalf of the disciplinary authority and not to establish the case of the department. The Inquiry Officer can proceed with the inquiry even if no Presenting Officer is appointed. The disciplinary authority shall supply to the Inquiry Officer, a copy of the charge-sheet and other relevant records. The inquiry to be conducted by the Inquiry Officer, being a quasi-judicial matter, attracts the principles of natural justice. The Inquiry Officer will first serve a notice to the delinquent indicating the time, date and place of the inquiry, for appearing before him.If the delinquent does not attend the inquiry, the Inquiry may be proceeded ahead exparte. The Inquiry Officer should ensure that during the inquiry, full opportunity is given to the delinquent to inspect the relevant records, cross-examine the witnesses and lead his evidence.
(10) Legal Assistance for Defence:
The delinquent employee is entitled to an opportunity to defend himself either in person or through another employee. Even a retired employee of the same department may be permitted by the Inquiry Officer to present the case of the delinquent employee. As regards the assistance of a lawyer is concerned, it has been said that there is no Common Law right in a party to a proceedings to be represented by a lawyer. It has been held that in departmental proceedings, the delinquent has no right to be represented by an Advocate and that the proceedings would not be bad only for the reason that the assistance of an Advocate was not provided to him.( F.C.I. Vs Bant Singh, AIR 1997 SC 2982) But if in a particular case, keeping in view the complexity or technicality of the facts of the case, assistance of a lawyer is regarded as a part of "reasonable opportunity", then the denial would be violation of Article 311(2) and the principles of natural justice. No hard and fast rule in this respect can be laid down. Again, where in a departmental proceedings, a counsel is engaged on behalf of the disciplinary authority, denial to the delinquent to engage a lawyer, would amount to denial of a reasonable opportunity. (K.B.Rai Vs State of Punjab, 1996(1) SLR(P&H) 353). But where the charges against the employee, being neither complex nor complicated, and the Officer presenting departmental proceedings, not being a legally trained person, refusal of assistance of a lawyer to the delinquent, would not result in the violation of the principles of natural justice.
(11) Attendance and Examination of witnesses:
In the conduct of departmental proceedings, the provisions of the Indian Evidence Act,1872 are not applicable and the authority conducting the proceedings is guided by the rules of equity and natural justice. In a departmental inquiry, the department should lead evidence against the delinquent in the first instance. Then, the delinquent be given an opportunity to cross-examine the witnesses produced against him. The Inquiry Officer is vested with power of summoning the witnesses. The delinquent may require that any of the departmental witnesses should be recalled for further cross-examination and if the Inquiry Officer is satisfied that this would be necessary in the interest of justice, he may recall such witnesses. He may, however, reject the request of the delinquent to summon a witness, if he is satisfied that the witness is not necessary or material for the case and the object behind the request is to harass the witness. The Inquiry Officer may himself call for new evidence or recall or re-examine any witness. In addition to the right to cross-examine the prosecution witnesses, the delinquent must have an adequate opportunity of producing his own witnesses and any documentary evidence in his defence. Though, the Inquiry Officer is not a Court and may not have powers to compel attendance of witnesses, yet the principles of natural justice require that all efforts should be made to secure their attendance.
(12) Findings and Report of the Inquiry Officer:
After the conclusion of the Inquiry, the Inquiry Officer shall draw up a report which generally consists of the following:-
(a) A brief Introduction leading to the appointment of the Inquiry, Inquiry Officer and the dates of hearing.
(b) A statement of charges and allegations against the delinquent.
(c) The explanation of the delinquent.
(d) The oral and documentary evidence produced in support of the charges.
(e) The evidence led by and on behalf of the delinquent.
(f) Reason for acceptance or rejection by the Inquiry Officer, of evidence led by either party.
(g) Conclusions arrived at with respect to each of the charges.
The Inquiry Officer should give clear findings on each of the charges, so that the delinquent should know, on what grounds he has been found guilty. The findings of the Inquiry Officer are in the nature of a report to the disciplinary authority to enable him to pass final orders. These are merely to assist the authority and are not binding on the disciplinary authority. In no case, the Inquiry Officer should recommend or propose any penalty.
(13) Findings of the disciplinary Authority and issuance of Show Cause Notice to delinquent:
The report of the Inquiry Officer is merely an enabling document which helps the disciplinary authority in formulating his opinion and to come to a conclusion about the guilt of the delinquent. If the disciplinary authority is of the opinion that the charges against the delinquent have not been proved and that the delinquent should be exonerated, it will pass an order to that effect and communicate it to the government servant concerned. If the charges against the delinquent stand proved, then disciplinary authority issues a Show Cause Notice to the delinquent proposing the penalty prescribed under the rules. The Show Cause Notice is given with the object to afford to the delinquent a reasonable opportunity to reply to the penalty proposed. It must specify the charges and allegations and should also disclose the reasons for coming to the conclusions. A Show Cause Notice as to the penalty proposed to be imposed on the delinquent can be served only after conclusion of the regular departmental proceedings and after consideration of the report of the Inquiry Officer
(14) Submission of reply to the Show Cause Notice and consideration of his past records:
The delinquent is required to submit his reply to the Show Cause Notice within stipulated period. Where the delinquent makes a request for a personal hearing, it must be given to him.Its denial might vitiate any action taken against him. Further, The disciplinary authority is free to consider the past service record of the delinquent while imposing penalty.
(15) Penalty Proposed:
Depending upon the gravity of the misconduct committed by the employee, the disciplinary authority is to decide the kind of penalty to the imposed on him.
The Rules enumerate the following two kinds of penalties:-
(a) Minor Penalties:-
(i)Censure (ii) Withholding of promotion (iii) Recovery from pay (iv) Withholding of increment of pay, without cumulative effect.
(b) Major Penalties:-
(i) Reduction to a lower stage in the time-scale of pay for a specified period, which shall ordinarily be not a bar to promotion.
(ii) Reduction to a lower time-scale of pay, grade, post or service, which shall ordinarity be a bar to the promotion
(iii) Compulsory retirement;
(iv) Removal from service and
(v) Dismissal from service.
Censure and Warning Distinguished:-
A "censure" may be distinguished from "warning". While censure is a formal penalty, warning is an administrative action. It is an administrative device in the hands of the superior officer for cautioning the subordinate officials with a view to toning up efficiency and maintaining discipline. Sometimes, circumstances justify the mention of warning in the officials Confidential Roll. However, the mere fact that it is so mentioned in the Confidential Roll does not convert a "warning" into a "censure". When a copy of warning is kept in the Confidential Roll of the employee, it will be taken as adverse entry. In that case, the employee concerned will have the right to represent against it in accordance with the rules. The procedure laid down for imposing minor penalties is to be followed in such cases. Though, mention of a warning in the Confidential Roll, would have the effect of making it apparent that the employee concerned has done something blameworthy and to some extent may also effect the assessment of his merit and suitability for promotion, it would not, however, amount to the imposition of the penalty of censure, because it was not intended that any formal punishment should be inflicted. Refusal to consider the name for promotion only on this ground has been held illegal.
(16) Final order:
After following the above mentioned procedure, finally order for imposing penalty is passed by the disciplinary authority. Since the disciplinary proceedings under the Service Rules, are quasi-judicial in nature and as such, it is necessary that the order in such proceedings issued by the disciplinary should have the attributes of judicial order. It should be a self contained and reasoned order conforming to the legal requirements. It, therefore, requires that the final order, imposing a penalty should be a speaking order, indicating clearly the points for consideration, the decisions thereon and the reasons on which the decisions are based. The reasons reveal a rational nexus between the facts considered and the conclusions reached. It also enables the delinquent to make his case for going in appeal or revision before a higher administrative authority or for invoking the jurisdiction of the High Court, against the decision of the disciplinary authority.
17) Remedies against Imposition of Penalties:
A government servant being not satisfied with the decision of the disciplinary authority has the following remedies against the order passed against him:
(A) Constitutional remedies:- A government employee being a citizen of India, is entitled to protection under the Constitution of India. Therefore, if any action taken against him is in violation of his Constitutional rights, he may invoke the writ jurisdiction of the Supreme Court under Article 32 and the High Courts under Article 226 of the Constitution of India.
(B) Administrative Remedies:-
(i) Appeal:-The right of appeal is one of the basic rights and defense of the delinquent employee. A government servant may prefer an appeal to the appellate authority specified in this behalf, under the Rules regulating his service. An appeal shall generally be preferred within a period of 45 days from the date of delivery of the order to the government employee. However, the appellate authority may entertain the appeal after the expiry of the said period of 45 days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time. The appeal should be complete in all respects and contain all material statements on which the reliance is placed. It should not contain any disrespectful or improper language. A copy of the appeal, complete in itself, shall be forwarded by the appellant to the authority which made the order appealed against. The authority would forward the same with its comments thereon, together with the relevant records, to the appellate authority without any delay. Generally, the appellate authority shall be the authority to which the authority making the order appealed against, is immediately subordinate. The order passed by the appellate authority must be a speaking order. The appellate authority has to dispose of the appeal taking into consideration all the circumstances of the case in accordance with the Rules regulating the exercise of appellate power. The appellate authority may confirm, reduce, enhance or set aside the penalty or it may remit the case to the authority which passed the order appealed against with such direction as it may deem fit in the circumstances of the case. It may revise, review or modify an earlier order if it finds that the earlier order was contrary to the Constitution of India or provision of law or was otherwise arbitrary or unfair.
(ii) Revision:- When, after the appellate authority has passed its judgment and if the government servant is not satisfied with it, he may file revision with the revisional authority, as prescribed by service rules. No proceedings for revision should be commenced, until after the expiry of the period of limitation of appeal or the disposal of the appeal, where any such appeal has been preferred.
The power of revision shall be exercised only on the ground:
(i) Of material irregularity in the proceedings of the Inquiry of appellate authority, which after the exercise of diligence, was not within the knowledge of the petitioner or could not be produced by him when the orders were made against him; or
(ii) On account of some mistake or error apparent on the face of the record. An application for revision should be dealt with in the same manner as if it were an appeal under the Rules.
(iii) Review:- Right of review is not a right of appeal, where all questions decided are open to challenge.In the absence of any specific provision authorizing the authority to review an order passed in disciplinary proceedings, it is not permissible for an authority to review the order.(State of Haryana Vs Roshan Lal, AIR 1970 ( P&H) 739.Where such power is so vested, the designated authority shall exercise this power within the period of limitation.
Conclusion:- Thus the procedure for taking disciplinary action against a Government servant is lengthy and detailed one. A government employee is expected to perform his duties with utmost care, efficiency, economy and effectiveness. The procedure is lengthy in order to ensure that he performs his responsibilities without any pressure or corruption. But at the same time it ensures discipline amongst the employees and shows the door to the employees who have become dead wood and do not perform as per expectations of public in general and his department in particular.
The writer can be approached at Ramanjeet@legalserviceindia.com